The Brief Legal Podcast interviews Attorney Eamonn Dornan about the Boston College subpoena

Barristers Andrew Robinson and Peter Leonard present The Brief, weekly legal current affairs show. Guests this week: Attorney Eamonn Dornan, who is representing Ed Moloney and Anthony McIntyre on the Boston College subpoena issue. Peter asks him for the latest news on this.

Programme host and barrister Peter Leonard (PL) interviews solicitor Eamonn Dornan (ED)about the subpoenas sent to Boston College for the archive known as The Belfast Project.

Peter Leonard (PL): One issue that has featured in the papers of late is issues relating to The Belfast Project in Boston College University.

The Belfast Project was an archive of information in relation to The Troubles whereby the Irish (Studies) Department there in Boston College put together with Ed Moloney, well-known journalist, former Northern Ireland Editor for The Sunday Tribune, they put together an archive of interviews with members of the IRA, UDA personnel, Loyalist paramilitaries, etc going back to the early years of The Troubles.

And there were strong conditions associated with these interviews ie that these interviews were not to be published until the people who gave the interviews had died. And therefore they were there for academics who wanted to research it into the future.

Now it has become contentious because as the result of various different interviews and publications the Police Service of Northern Ireland are anxious to get their hands on this information. And as such, a strong campaign has been waged on behalf of Ed Moloney and Anthony McIntyre, the two main protagonists behind this campaign, to stop this information being brought back and given over to the PSNI.

Their solicitor is a man called Eamonn Dornan and earlier I spoke to him.

INTERVIEW

PL: I’m joined on the line by Eamonn Dornan who is a solicitor and who’s involved in this Belfast Project case in Boston College which is currently before the American courts.

Now Eamonn, before we get into the actual legal implications of this decision, can you just tell us a little bit about The Belfast Project and why it’s in the news at the moment?

Eamonn Dornan (ED): The Belfast Project was a landmark oral history project commenced by Ed Moloney and Anthony McIntyre, who is a former IRA prisoner and one of the interviewers. And they collected interviews of combatants in The Troubles from the paramilitary side mostly; collected interviews of IRA and UVF members and those interviews were recorded under the strictest conditions of confidentiality and then housed in The Burns special library in Boston College.

PL: And Boston College, as we know, has an internationally recognised Irish Department so this was a very important archive for let’s say historians and people interested in current affairs to maybe review The Troubles in the years to come and have direct comments from people.

Now there were strict guidelines.

Can you tell us about the strict guidelines under which these various different individuals agreed to give interviews and give information?

ED: Yes. The interviews were only to be released upon the death or consent of the interviewees. The fact of the interviews was also to be kept confidential by the interviewees themselves.

Of course in two cases, those of Brendan Hughes on the IRA side and David Ervine on the UVF side, those interviews were released upon their deaths so that the archives were able to be accessed upon their demise.

PL: Okay. And as a result of the information that emerged, I know Ed Moloney, who’s one of the prime movers in relations to this, he wrote a book, didn’t he…Voices From…I can’t remember…?

PL: Yes, that’s it. He wrote a book in relation to that and information came out. Now as a result the PSNI in The North got interested. So what happened then?

ED: The PSNI issued requests for subpoenas of the interviews of Brendan Hughes; those materials were turned over because the confidentiality had lapsed upon his demise.

And also then the interviews of Dolours Price. And this arose from an interview that she had conducted with The Irish News and republished by The Sunday Life whereupon she stated that she’d given an interview to Boston College and that then prompted the subpoenas, the first set of subpoenas…

PL: And specifically this relates to the death of Jean McConville, isn’t that correct?

ED: Yes. Well, the first set of subpoenas didn’t mention any victim but the second set of subpoenas then requested any and all information relating to the death of Jean McConville so it was more clear when the second set of subpoenas were issued that that was the target of the investigation.

PL: So let’s get into the subpoenas now. So the subpoenas were issued by the PSNI in order to assist them investigate a crime as such, the disappearance and the death of Jean McConville.

And they petitioned the American authorities to assist them with this. So what happened then?

And every European country has something similar. But under the terms of that agreement then the Attorney General is obliged, as the central authority, to pursue a subpoena request which he did in the United States District Court in Massachusetts. And then Boston College initially resisted both subpoenas, brought a Motion to Quash both subpoenas and my clients, Ed Moloney and Anthony McIntyre, sought first to intervene in Boston College’s case, sought to assert their own rights in relation to the Motions to Quash. That was denied. Then they brought an original complaint assigning them the same causes of action before the District Court and that again was dismissed for failure to state a cause of action.

PL: Now I know there’s a perception on the part or it has been reported that there’s a perception on the part of Mr. Moloney and Mr. McIntyre that they’re not exactly happy with the attitude that’s been adopted by Boston College.

Can you tell me what are the arguments your clients are putting forward to stop this information being given back to the PSNI in Northern Ireland?

ED: Their arguments are based mostly on the First Amendment so that there must be a balancing between the free-flow of information and the right of law enforcement to every man’s testimony, if you’d like. So a balance between free-flow of information and law enforcement requirements.

Now they also assert a constitutional claim under the Fifth Amendment, right to life, or which is the closest equivalent of a right to life, and they also had also set forth a claim that the Attorney General failed in his obligations under the Mutual Legal Assistance Treaty, or MLAT for short, and that he failed to consider whether the request was politically motivated, whether it would infringe on other US interests and whether indeed there was any prosecution which would likely arise from the release of the materials.

PL: So the fact that you’ve lost the first instance and you’ve lost in the court of appeal does that mean you’ve run out of road effectively?

ED: No. There are certainly some options left. The first and most immediate option which my clients will avail of will be to bring a Petition for Rehearing En Banc and that means a petition for a rehearing in front of the entire bench.

And in the First Circuit that’s not such a stretch because there’s only five active senior judges whereas other circuits would have well over a dozen. So logistically it’s less difficult to get the entire bench together.

There’s also the fact that Boston College has an extant appeal from the second set of subpoenas, whereas Boston College didn’t join or didn’t appeal the release of the Dolours Price materials, it did appeal the release of any and all information relating to Jean McConville which encompassed seven other interviews. So that appeal is going on. And my clients will request a rehearing en banc.

Now if that fails or if that is dismissed then they have the option of filing a Petition for Certiorare with the United States Supreme Court.

PL: Okay, so it could go all the way to the Supreme Court. Well, we look forward to hearing more about this. Eamonn, thank you very much for joining us.

SITE MAP

The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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